State v. Collins

• Decision Date: 26 October 1998
• Docket Number: No. S98G0496.,S98G0496.
• Citation: 270 Ga. 42,508 S.E.2d 390
• Parties: STATE v. COLLINS.
• Court: Georgia Supreme Court

508 S.E.2d 390

270 Ga. 42

STATE v. COLLINS.

No. S98G0496.

Supreme Court of Georgia.

October 26, 1998.

John Thomas Morgan III, Dist. Atty., Lee Anne Mangone, Robert M. Coker, Asst. Dist. Attys., Decatur, for the State.

Kendal Demetrius Silas, Decatur, for William Perry Collins.

FLETCHER, Presiding Justice.

A jury convicted William Perry Collins of rape, statutory rape, and incest involving a 12-year-old girl. The court of appeals affirmed the convictions of statutory rape and incest, but reversed the rape conviction on the grounds that the state failed to show that the defendant used force.¹ We granted the writ of certiorari to consider whether the element of force may be presumed as a matter of law to obtain a rape conviction when the victim is a minor. Adhering to our decision in Drake v. State,² we hold that the state must prove the element of force to obtain a conviction for forcible rape of a victim under the age of consent. Therefore, we affirm.

In enacting a new criminal code in 1968, this state adopted the common-law definition of rape.³ OCGA § 16-6-1 defines the offense of rape as "carnal knowledge of a female forcibly and against her will." The statute itself defines carnal knowledge as "any penetration of the female sex organ by the male sex organ."

Under the influence of the Model Penal Code, this court has judicially interpreted the remaining terms, "forcibly" and "against her will," as two separate elements in rape cases.⁴ The term "against her will" means without consent; the term "forcibly" means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.⁵ The fact that a victim is under the age of consent may supply the "against her will" element in a forcible rape case since it shows that the victim is incapable of giving legal consent. The same fact cannot supply the element of force as a matter of law in rape cases based on our decision in Drake.

In that case, we reasoned that presuming force from the victim's age in all forcible rape cases would, as a practical matter, eliminate the crime of statutory rape. Instead, we concluded that the element of force was supplied by the nine-year-old child's fear that Drake would beat her or her mother if she resisted.⁶

Since our decision in Drake, we have at least three times stated that sexual acts directed against a child are forcible and against the will as a matter of law. In Cooper v. State,⁷ we held that the state did not have to show that a defendant used physical force against a five-year-old child or the child resisted to prove force in an aggravated sodomy case. In Richardson v. State,⁸ a case involving incest and sodomy, we concluded that a stepfather's five-year pattern of sexual exploitation against his teenage stepdaughter was forcible, as a matter of law, based on her age and his position of authority in the family. Finally, in Brown v. State,⁹ we rejected the state's contention that child molestation was not a forcible felony. Quoting our decision in Cooper, we stated: "Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts `are, in law, forcible and against the will' of a child."¹⁰

We granted certiorari in this case to determine whether, as a dissenting judge on the court of appeals asserts, our opinion in Drake is not "good law" in forcible rape cases because our decisions in Cooper, Brown, and Richardson have negated its holding.¹¹ Although there are legitimate arguments for reconsidering our decision in Drake, we choose to reaffirm its holding that the state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim's age.

First, we consider the rationale given in Drake still to be persuasive. Statutory rape is a strict liability crime based solely on the act of sexual intercourse with an underage victim.¹² As a practical matter, few defendants would be charged with that crime if both force and consent were presumed as a matter of law in forcible rape cases involving victims under the age of consent. Unlike forcible rape, the crimes involved in Cooper, Brown, and Richardson have no strict liability counterpart similar to statutory rape. Therefore, the rationale used in Drake would not apply in those cases.

Second, the crime of rape is unlike any other crime. As the drafters of the Model Penal Code explained:

Rape "is the only form of violent criminal assault in which the physical act accomplished by the offender ... is an act which may, under other circumstances, be desirable to the victim." This unique feature [requires distinguishing] between true aggression and desired intimacy. The difficulty of drawing this line is compounded by the fact that there often will be no witness to the event other than the participants and that their perceptions may change over time.¹³

Due to these peculiarities, rape cases have too often focused on the actions of the victim rather than the misconduct of the suspect. Unlike other sexual offenses, rape historically has required corroboration,¹⁴ victims have had to show that they physically resisted with all their strength to prove lack of consent,¹⁵ and defendants have presented evidence on the prior sexual conduct of the victims.¹⁶ Fortunately these evidentiary problems have been addressed, thus allowing rape prosecutions to properly concentrate on the acts of sexual violence by the defendant against the victim. Nevertheless, the uniqueness of the crime justifies treating it differently from related sexual offenses.

Third, the quantum of evidence to prove force against a child is minimal, despite the dissent's argument. Physical force is not required. "Intimidation may substitute for force."¹⁷ The element of force is shown "if the defendant's words or acts were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself or others."¹⁸ Thus, the state proved force in Drake through the nine-year-old victim's testimony that she was afraid that her father would beat her or her mother if she refused his orders.¹⁹ In other cases, force has been shown by testimony that the defendant refused to take the victim home or release her,²⁰ the defendant threatened to spank the victim if she told,²¹ and the defendant threatened to put the victim and her mother on the streets.²²

Finally, establishing a single rule of law in all forcible rape cases involving underage victims is problematic. If we were to presume that force is shown every time the victim is below the legal age of consent, the same rule would apply to the child entering kindergarten and the sexually active high school student. This single treatment not only ignores the wide variety of factual situations in rape cases, but also runs counter to the trend in the criminal law to create "meaningful grading distinctions among the different forms of the offense."²³

Yet, this case points out a troubling conflict between the way state law deals with forcible rape and other sexual offenses. At common law, rape included consensual relations with a girl under 10 years of age.²⁴ "They are plainly incapable of giving any kind of meaningful consent to intercourse and manifestly inappropriate objects of sexual gratification."²⁵ As the legal age of consent has increased, however, it has become necessary in rape cases to distinguish between different categories of underage girls. For that reason, this Court in Drake abandoned the presumption that a rape was forcible based solely on the fact that a victim was under the age of consent.

The Model Penal Code presents a solution to this inconsistency when the victim is a young child, which we urge the General Assembly to consider. In its definition of rape, the code provides that a man is guilty of rape if "the female is less than 10 years old."²⁶ Enacting this additional definition of forcible rape in Georgia would reestablish our common-law rule and the common-sense principle that sexual intercourse with a child under 10 years of age is a forcible act constituting rape as a matter of law.

Judgment affirmed.

All the Justices concur, except HUNSTEIN, J., who dissents.

HINES, Justice, concurring.

I write separately to explain my decision to join in the majority opinion. While I agree with the dissent that Drake v. State, 239 Ga. 232, 236 S.E.2d 748 (1977), represents a substantial departure from prior precedent, legislative changes to OCGA § 16-6-3, the statutory rape statute, require that we adhere to the reasoning in Drake.

The legislature has provided gradients of punishment for statutory rape according to the age of the perpetrator. When the person so convicted is 21 years of age or older, the person is to be punished by imprisonment for not less than ten nor more than 20 years. When the person is 20 years old or less the sentence may be as little as one year. Further, if the statutory rape victim is 14 or 15 years of age and the person convicted is no more than three years older than the victim, then the person will be guilty of only a misdemeanor. OCGA § 16-6-3(b). Although the dissent would leave the decision of whether to prosecute for rape or statutory rape to the prosecutor, I believe the sentencing differentials make clear a legislative intent that the crime be treated as statutory rape when force is not present. It would be anomalous and a circumvention of express legislative intent to allow the State to obtain conviction and the consequent minimum ten-year punishment prescribed for forcible rape for the conduct of sexual intercourse between teenagers when the legislature has determined that conduct to be misdemeanor in nature.

Moreover, unlike forcible rape, statutory rape is gender neutral. Therefore, presuming force as a matter of law based on the victim's age could result in disparate treatment...